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Racial Discrimination Amendment Bill 1992



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House: House of Representatives

Portfolio: Attorney- General

Purpose

To make it an offence to perform a racially offensive act in public or to intentionally cause people to fear violence due to their race, colour or origin. Subject to certain exceptions, the Bill will also make it unlawful to stir up hatred, serious contempt or severe ridicule against a person or group of people due to their race, colour or origin.

Background

Racial discrimination takes many forms, from actions or statements that offend members of a racial group although this was not intended to organised violence against members of a racial group. While the level of racial discrimination in Australia is relatively low by world standards, there are still a significant number of open racist activities. According to recent reports (see below), Aborigines and Torres Strait Islanders are subject to a significant degree of racism and are `faced with racism in almost every aspect of their daily lives, [and this] is the underlying reason for the high levels of racist violence against Aborigines and Torres Strait Islanders reported ....' 1 Another emerging trend is an increase in racial discrimination against Moslems.

While there are already laws in Australia that make discriminating against a person on the basis of their race illegal (see below), the available remedy is usually compensation so that damage to an individual or property must be shown. On 22 July 1992, the Attorney- General announced that legislation would be introduced to make it a criminal offence to incite hatred or ridicule of a person or group on the grounds of race, colour or nationality. As the Commonwealth has no direct Constitutional power in the area of racial discrimination, legislation in this area is based on the external affairs power and the adoption of international treaties. As noted in the second reading speech, this Bill will implement Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Definition of `Racial Discrimination'

The definition of racial discrimination contained in the Racial Discrimination Act 1975 is based on that contained in Article 1 of CERD which defines the term to mean

"...any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any field of public life."

Outline of Australian Racial Discrimination Laws

Federal Laws: The Racial Discrimination Act 1975 makes it unlawful to discriminate on the grounds of race, colour, national or ethnic origin. However, while such discrimination is unlawful it is not a criminal offence.

The Human Rights and Equal Opportunity Commission (HREOC) also has power in this area and may inquire into and conciliate where there is any act or practice of the Commonwealth that may breach any right under the International Covenant on Civil and Political Rights (ICCPR). Article 12(2) of the ICCPR provides that

"... any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".

The Crimes Act 1914 contains a number of provisions that could, but to date have not, been used to prosecute a person for racial discrimination. For example, it is an offence under section 24C of the Act for a person to conspire or carry out a seditious enterprise with the intention of causing violence or creating public disorder or a public disturbance. `Seditious intention' is defined in section 24A to include

`...to promote feelings of ill- will and hostility between different classes of Her Majesty's subjects so as to endanger the peace, order or good government of the Commonwealth.'

State Laws: All States/Territories have laws that seek to protect people against assault and damage to property. Such laws can also be used in prosecuting a person for racially motivated acts which result in assault or damage to property. In addition, a number of State/Territories have enacted legislation that specifically deals with racial discrimination. For example, in June 1989 the New South Wales Parliament passed the Anti- Discrimination (Racial Vilification) Amendment Act. This Act made it unlawful for a person

`... by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of person on the ground of the race of the person or members of the group.'

Subsection 20C(1) applies only to `public acts'. This term is defined to include any form of communication to the public; any conduct observable by the public; and knowingly distributing or disseminating material to the public that promotes or expresses hatred, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race (section 20B).

This Act also established a criminal offence of `serious racial vilification'. Section 20D makes it an offence for a person

`... by a public act, [to] incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include -

(a) threatening physical harm towards, or towards any property of, the person or group of persons; or

(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.'

There have been no criminal prosecutions under this law.

For a detailed analysis of NSW and other State/Territory racial discrimination law see pp. 144- 145 of the ALRC's 1992 report, Multiculturalism And The Law, and pp. 28- 32, 469 and 470 of HREOC's 1991 report, Racist Violence - Report of the National Inquiry into Racist Violence in Australia.

Recent Federal Inquiries into Racial Discrimination

HREOC National Inquiry Into Racist Violence In Australia: The National Inquiry into Racist Violence (the National Inquiry) was initiated by HREOC in 1988 following representations to it about an apparent increase in the incidence of racially motivated violence in Australia. The findings of the National Inquiry included:

* racist violence is an endemic problem for Aboriginal and Torres Strait Islander people in all Australian States and Territories;

* racist attitudes and practices (conscious and unconscious) pervade our institutions, both public and private; and

* on the whole, public authorities do not respond effectively to reports of racist violence.

The recommendations of the National Inquiry included:

* that the Federal Parliament enact in the Federal Crimes Act 1914 a new criminal offence of racist violence and intimidation;

* that the Federal Crimes Act 1914 be amended to create a clearly identified offence of incitement to racist violence and racial hatred which is likely to lead to violence; and

* that the media avoid the unwarranted introduction of race or ethnicity into a story, and particularly the unnecessary use of ethnic- specific labels in reporting on suspected or convicted criminals.

ALRC Report Multiculturalism And The Law: In August 1989, the ALRC was given a reference to consider whether Australian family law, criminal law and contract law are appropriate to a society made up of people from differing cultural backgrounds and from ethnically diverse communities. The

recommendations of the ALRC in relation to racial discrimination included:

* the Commonwealth amend the Crimes Act 1914 to make racist violence an offence under federal law ;

* incitement to racist hatred and hostility should be made unlawful but not a criminal offence; and

* legislation regulating broadcasting should include a provision prohibiting the broadcast of material that is likely to incite hatred or hostility against, or gratuitously vilify, any person or group on the basis of colour, race, religion or national or ethnic origin.

The rationale of the ALRC for recommending the establishment of an offence of racist violence included

`Racist violence undermines community relations and is potentially destructive of the social fabric. It is a national problem and should be addressed at national level. To make racist violence a federal offence would be a valid exercise of the external affairs power of the Commonwealth ... . It would also implement Australia's obligations under the ICCPR and the CERD. ... . The creation of an offence would promote research and education that might help reduce the incidence of racial intolerance.' 2

In relation to the recommendation that incitement to racist hatred and hostility should be unlawful, the ALRC commented

`Laws prohibiting incitement of racist hatred and hostility protect the inherent dignity of the human person. ... . Laws prohibiting incitement to racist hatred and hostility indicate a commitment to tolerance, help prevent the harm caused by the spread of racism and foster harmonious social relations. ... . Inciting hatred and hostility against sections of the community is an offence against the whole community and the whole community has an interest in ensuring that it does not happen.' 3

Concerning the recommendation relating to broadcasting, the rationale of the ALRC was that

* existing complaints mechanisms are largely ineffectual; and

* that it `... is not appropriate that the broadcasting of material that is likely to incite hatred and hostility against communities within the Australian community and to lead to social disharmony should be left to self- regulation.' 4

Royal Commission into Aboriginal Deaths in Custody

The Royal Commission, which reported in 1991, found that there was institutionalised racism against Aborigines and Torres Strait Islanders. As part of its findings it was noted:

* Regarding racism, Aboriginal people thought `We lived it day by day, we went to bed with it.'

* In regard to this comment it was stated `They are talking about the laws, the systems that were put in place pursuant to the laws which operate every day whether the people who operate the system are well meaning and helpful or personally racist.'

* Laws against racial discrimination make it likely that those who wish to outrightly discriminate will find other bases for doing so. 5

In relation to racial vilification, the Royal Commission recommended `That governments that have not already done so legislate to proscribe racial vilification and to provide a conciliation mechanism for dealing with complaints of racial vilification. The penalties for racial vilification should not involve criminal sanctions.' 6

Arguments Against The Amendments Proposed By This Bill

Arguments which could be used against the establishment of a Federal offence of racial incitement and making racial vilification unlawful include:

* that there are already laws that protect people from assault, damage to property and seditious acts;

* the amendments would unduly restrict freedom of speech;

* the problem is one of personal and community attitude and laws have usually proved ineffective in changing peoples' attitudes; and

* more could be achieved by more stringent enforcement of current Federal and State laws than through the introduction of another law in this area. (As noted above, there have been no prosecutions under the 1989 NSW Act which is similar in wording to this Bill.)

Main Provisions

The Bill will come into force 90 days after it receives Royal Assent (clause 2).

Amendments to the Crimes Act 1914

Clause 5 will insert a new Part IVA, titled Racial Incitement, into this Act. Proposed section 57 defines the term `public act' to be an act by which words, sounds, images or writings are communicated to the public, including display, distribution, broadcasting and screening. It also includes any conduct seen by the public, including gestures and the wearing of clothing, signs, flags, emblems or insignia.

An act will be taken to be racially offensive if it is likely, in all the circumstances, to stir up hatred against a person or group of people on the grounds of race, colour or racial or ethnic origin (proposed section 58).

Proposed section 59 will make racial incitement an offence. It will be an offence to knowingly perform a public act that is racially offensive with the intention of stirring up hatred against a person or group of people on the grounds of race, colour or racial or ethnic origin. The maximum penalty for such an offence will be 12 months imprisonment.

As well, it will be an offence to perform such an act with the intention of causing persons of a particular race, colour or national or ethnic origin to fear that violence may be used against them or other persons of such a group. The maximum penalty for such an offence will be two years imprisonment.

The above offences are not intended to exclude the concurrent operation of State and Territory laws.

Amendments to the Racial Discrimination Act 1975

Clause 7 will insert a new Part, titled Prohibition of Racial Vilification, into this Act. Proposed section 19B will make it unlawful to knowingly or recklessly do a public act (this term has the same meaning as described above) that is likely, in all the circumstances, to stir up hatred, serious contempt or severe ridicule against a person or group of people on the grounds of race, colour or racial or ethnic origin. However, it will not be unlawful to do such an act in good faith in the performance, distribution or exhibition of an artistic work; in the course of a statement, publication or debate held for artistic or scientific purpose or for another purpose in the public interest; or in making or publishing a fair report or comment on an event or a matter of public interest.

It will also be unlawful to incite or assist a person to perform such an act (proposed section 19C).

Proposed section 19D provides that where an employee performs such an act in connection with their duties, the employer will also be taken to have done the unlawful act unless they took all reasonable steps to prevent the employee from doing the act.

References

1. Australian Law Reform Commission, Multiculturalism And The Law, 1992, p. 387.

2. Ibid., p. 155.

3. Ibid., p. 160.

4. Ibid., p. 163.

5 Royal Commission into Aboriginal Deaths in Custody, Vol. 2 pp. 160 - 162.

6 Ibid., Vol. 5, p. 116.

Bills Digest Service 27 January 1993

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1993.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1993.